SOME MODERN ADAPTATIONS OF CUSTOMARY LAW IN THE SETTLEMENT OF MATRIMONIAL DISPUTES IN THE LUO, KISII AND KURIA TRIBES OF SOUTH NYANZA
| Author | O. S. Knowles |
| DOI | http://doi.org/10.1002/j.1099-162X.1956.tb00509.x |
| Date | 01 January 1956 |
| Published date | 01 January 1956 |
CUSTOMARY
LAW
IN
THE
LUO,
KISII
AND
KURIA
TRIBES
11
SOME MODERN ADAPTATIONS OF CUSTOMARY LAW
IN
THE
SETTLEMENT OF MATRIMONIAL DISPUTES IN
THE
LUO, KISII AND KURIA
TRIBES
OF
SOUTH NYANZA
By O. S. Knowles
Administrative Officer, Kenya.
IN December, 1954, the Luo section of
the
South Nyanza customary law
panel came to
the
conclusion
that
:-
" We are of
the
opinion
that
a divorce
may
be granted in cases where
the
courts are satisfied
that
the
girl is living under very difficult conditions
which are impairing her health even if her parents or guardians are opposed
to the divorce."
This is a very different situation from
the
traditional one. Before modern
adaptations of custom began, no woman could leave her husband unless her
father was agreeable
and
also prepared to refund the bride price.
Her
father
Was
only likely to be amenable in a strictlylimited range of circumstances, such
aswitchcraft or the impotency of her husband.
. The tendency for African courts in Nyanza Province to assume a divorce
Jurisdiction for which there is no traditional precedent has been noted
by
Arthur Phillips.' He states
that
this seems to be a spontaneous development,
resulting largely from
the
fact
that
African women have begun to approach
the
Courts direct with petitions for divorce. By entertaining such petitions
the
Courtsare recognizing
the
capacity of
the
wife of an African customary marriage
to take proceedings independently
and
irrespective of whether she has obtained
the
support of her own relatives.
The starting point for these modern adaptations of customary law is an
ｾ､ｭｩｮｩｳｴｲ｡ｴｩｶ･
instruction issued by
the
Provincial Commissioner, Nyanza,
In
1949. This
stated
:-
"Normally a woman has no right under customary law to seek a divorce
from her husband,
but
modern developments, which forbid forced marriages,
also enable a woman to plead before the indigenous elders and the formal
Chief's
baraza
for an annulment of her marriage. Usually she is told to
return to her husband to give
the
marriage afurther trial. This
may
happen
two or three times. Finally
the
baraza
accepts her refusal to live with her
husband and gives her permission to
return
to her father.
It
is, I believe,
the desire of the woman in
the
more advanced areas to have this order of
the
ｾｨｾ･ｦＧｳ
baraza confirmed by a court order which makes them institute
.divorce' proceedings before the Native Tribunals. In their view
the
matter
IS then on record in
the
Court files.
.
"I
am very much in favour of this procedure, so long as
the
woman has
10 the first place been before the Chief's baraza which is the traditional place
for discussing these matters. I believe
that
once this custom of obtaining
acourt decree
that
a divorce has taken place becomes widespread, cases
ｾｯｮ｣･ｲｮｩｮｧ
the custody of children will become very much easier to decide
justly. At
the
moment there is always
the
difficulty of knowing when a
woman ceased to be the wife of one man
and
became
the
wife of another."
ＭＺＺＭＺＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＺＭＭＺＭＺＭＺＭＭＭＭＺＭＺＺＭＭＭＺＭＭｾＭ］ＭＭＭＭＭＺＭＭＭＭﾭ
by
ｾｉｮｴ･ＡｄＺ｡ｴｩｯｮ｡ｬ
African
Institute,
Survey
of
African Marriage and
Family
Life,edited
.Phillips, Oxford University Press, 1953, p. 225.
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